Counsel May Drop Hopeless Defense

The U.S. Supreme Court unanimously reversed the Ninth Circuit yet again in another habeas case. As we have noted before, it is not the much-debated "reversal rate" that demonstrates how far out of the mainstream the Ninth is. Rather, it is the number of cases where that court's judgment does not draw even a single affirming vote from the nine jurists of diverse viewpoints on the high court.

In this noncapital murder case, Alexandre Mirzayance did not deny that he stabbed his 19-year-old cousin nine times and shot her four times. The only defense was mental. In the guilt phase, the prosecution had the burden of proving beyond a reasonable doubt that the killing was "willful, deliberate, and premeditated." (Cal. Penal Code § 189.) Mirzayance's psychiatric testimony failed to convince the jury there was even a reasonable doubt of that. So what are the chances that largely the same evidence is going to convince the same jury by a preponderance of the evidence that he "was incapable of knowing or understanding the nature and quality of his ... act and of distinguishing right from wrong at the time of commission of the offense" (Penal Code § 25(b))? Vanishingly small.

Does counsel have an obligation to go for that infinitesimal chance? The Ninth Circuit said yes. The Supreme Court unanimously said no.

Part II of the opinion discusses the case under the deference standard of AEDPA, 28 U.S.C. § 2254(d). Review of an ineffective assistance claim under this standard is "doubly deferential." That is, the state court on state habeas does not find ineffective assistance merely because it disagrees with trial counsel's decision. Those decisions are reviewed deferentially under Strickland v. Washington, 466 U.S. 668 (1984). After the state court has decided the case applying the correct Strickland standard, AEPDA authorizes the federal court to overturn that decision only if it is outside the bounds of reasonableness.

First, the Supreme Court dispatches the notion that any special standard applies here in place of the general Strickland one. Has the Supreme Court laid down a bright-line rule that counsel must pursue a defense if there is nothing to lose and an infinitesimal chance of gain by pursuing it? No. So the state court decision is not contrary to federal law in applying the wrong rule of law. Did the court apply that rule unreasonably? No. "It was not unreasonable for the state court to conclude that his defense counsel's performance was not deficient when he counseled Mirzayance to abandon a claim that stood almost no chance of success."

The high court could have stopped there. However, in Part III, the opinion goes on to say that even applying the Strickland standard de novo (that is, without deferring to the state court decision) and even considering the additional information presented at the federal district court evidentiary hearing, Mirzayance's claim still fails both prongs of the Strickland test. Abandoning the hopeless defense does not violate professional norms, and Mirzayance was not prejudiced by that decision in any event, because the chance of success was so remote.

But we are aware of no "prevailing professional norms" that prevent counsel from recommending that a plea be withdrawn when it is almost certain to lose. See Strickland, supra, at 688. And in this case, counsel did not give up "the only defense available." Counsel put on a defense to first-degree murder during the guilt phase.

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It was highly improbable that a jury, which had just rejected testimony about Mirzayance's mental condition when the State bore the burden of proof, would have reached a different result when Mirzayance presented similar evidence at the NGI [not guilty by reason of insanity] phase.

Curiously, while Part III of the opinion is unanimous, Justices Scalia, Souter, and Ginsburg do not join Part II. That is an odd line-up, not explainable on the usual ideological grounds. Nothing in Part II seems all that controversial. The discussion of the AEDPA standard seems to be well-plowed ground, further evidenced by the fact that Justice Stevens joins Justice Thomas's opinion. Perhaps the problem has to do with the state court's rejection of the claim summarily, with neither factual findings nor reasons stated. See footnote 2. The three Justices not joining this part may have thought that problem should await another case, with this case being easily disposed of on the straight merits.

And why did the Ninth get the merits so wrong? I suspect that this is the recurring problem in criminal law, going back at least to the 1950s, of appellate judges giving way too much weight to psychiatric testimony and wringing their hands over the supposed inability of supposedly afflicted people to control their actions. The persons of sense who generally populate juries reject this psychobabble with regularity. The Ninth Circuit's unpublished opinion in this case finds a reasonable possibility of success of the insanity plea with minimal discussion.

A bit of the long history of this problem can be seen in the code itself. California Penal Code § 189, noted earlier, says in its last paragraph, "To prove the killing was 'deliberate and premeditated,' it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of the act."

Huh? Maturely and meaningfully? Why on earth would a legislature find it necessary to negate such a crackpot notion, that only mentally mature and philosophical people can commit first-degree murder? Has that ever really been the law? Alas, yes. See People v. Sedeno, 10 Cal. 3d. 703, 713, 518 P. 2d 913 (1974).